At the resentencing, the district court imposed 160 months' imprisonment, less than the first sentence but still an upward variance. The district court stated that the variance was necessary to avoid unwarranted sentencing disparities, because the defendant's brother had been sentenced to 324 months for the same conduct. The Fifth Circuit held this sentence substantively unreasonable as well, because only unwarranted disparities need to be avoided. This defendant pleaded guilty and cooperated extensively with the government, and his brother did not. The disparity would have been warranted and is an improper basis for an upward variance.
So this defendant will get a third sentencing hearing and substantive unreasonableness review lives, at least occasionally.